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Disciplinary Committee of BCI: Role & Objective

The profession of law is the noblest of all. After the Britishers visited India, various efforts were made to streamline the legal profession in India. The fourteenth Law Commission report presided over by Mr M.C. Setalvad, then Attorney-General of India, in its Reform of Judicial Administration supported the formation of the All India Bar Committee, to form a coordinated all India Bar, as well as the establishment, composition and functions of the state and All India Bar Councils.


The Bar Council of India is a statutory body that regulates and represents the Indian Bar. It also prescribes a standard of professional conduct, prescript and has disciplinary jurisdiction over the bar. The Bar Council of India has various committees within it to maintain the nobility of the profession, which makes recommendations to the Council. The members of these committees are elected from amongst the members of the Council. The Advocates Act mandates the creation of a Disciplinary Committee under section 9 of the Advocates Act, 1961.

Before the existence of the disciplinary committee, any complaint about professional misconduct or other misconduct against any advocate was to be made to the High court under section 10 of the Legal Practitioners Act.


Disciplinary Committee of the Bar Council of India


The Advocates Act 1961 has conferred powers on the disciplinary committee of the Bar Council of India to conduct an inquiry in cases of complaints of professional misconduct or any other misconduct against any advocate referred to it, to conduct an enquiry of the cases before itself, to hear appeals and order stay and review its own orders. It has the power to make any such order as to costs of any proceedings before it as it may deem fit. Any such order shall be viable as it were an order of the Supreme Court.


Formation of Disciplinary Committee

Following from Section 9 of Advocates Act 1961, a Bar Council shall constitute one or more disciplinary committees, each shall consist of three members, out of which two shall be persons elected by the Council from its members and the third member shall be a person amongst advocates who possess the qualifications specified in the proviso of sub-section (2) of section 3 and who is not the member of the Council. And the senior-most advocate amongst the members of a disciplinary committee shall be the Chairman of the committee.

Professional misconduct


Section 35 of the Advocates Act, 1961 defines Professional Misconduct.

Black's Law Dictionary, Sixth Edition defines 'professional misconduct’ as

A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour', its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement offence, but not negligence or carelessness.

Conduct is a behaviour with good manners and treatment which is shown to others, misconduct represents that the person is misbehaving with others, and when it is by a professional it can be seen as ‘ Misconduct’.


Here it is important to quote the heading of SC in the case of State of Punjab v. Ram Singh,

'misconduct' may involve moral turpitude, it amounts to improper or wrong behaviour, unlawful behaviour, willful in character, a forbidden act, a transgression of established and definite rule of action or code of conduct but a not mere error of judgment, carelessness or negligence in the performance of the duty; the act complained of bears forbidden quality or character.

The legal profession has some set standards of conduct, professional ethics (laid done by Bar Council of India) to which an advocate is bound to follow befitting the profession. In the case of V.C Ranga Durai v. D. Gopalan, the Supreme Court specified that an advocate who is entrusted with a brief must follow the norms of professional ethics and must also protect the best interest of their clients. Section 35 of the Advocates Act, 1961 states that an advocate may be punished for professional misconduct or other misconduct. Section 35 empowers the Bar Council and the State Bare Council that if there is proven misconduct then both council has the power to punish such advocate.


4.1 Professional Negligence: an advocate is expected to exercise reasonable skills and prudence and should not be negligent. In order to constitute misconduct, the negligence must be suppression of truth or deliberate misrepresentation of facts. Mohd. Ismail v. Balarathna, the constitutional court held that if an advocate neglects to furnish requisite documents or material papers despite repeated adjournments, it should amount to misconduct.


4.2 Misappropriation: In the case of N.G Dastane v. Shrikant S. Shivde, the Supreme court held that seeking repeated adjournments for postponing examination of witnesses present in the court amounts to misconduct and an advocate may be punished for that matter.

In a situation where an advocate collects money from their clients for court fee and misused it, this is also misappropriation and it amounts to professional misconduct.


4.3 Improper behaviour before Magistrate: An advocate is required to respect the court and maintain its dignity. Making any false allegation against the judicial officers also amounts to gross misconduct.


4.4 Furnishing False Information: in Emperor v. K.C.B.A Pleader the constitutional court held the advocate guilty of misconduct for furnishing false information to Marwari.


4.5 Appealing for both sides: An advocate is duty-bound to protect the best interest of their clients. He must not represent conflicting views.


4.6 Giving Improper Advice: Advocacy is a noble profession, so an advocate is under the impression of a knowledgeable person, he is must benefit the client by his learning, talents and judgment. He must provide is the proper and best advice to his clients.


4.7 Two Test Theory: to determine whether any particular act is professional misconduct or not, we can proceed with ‘two test theory’.


In Re an advocate, it was held that.

  1. the misconduct is such that he must be regarded as unworthy to remain a member of the Honorable profession.

  2. The misconduct is such that the advocate must be regarded as unfit to be entrusted with the duties that an advocate is called upon to perform.

  3. Roles, Powers and Objective of the Disciplinary Committee of the Bar Council of India


Section 42 of the Advocates Act 1961, provides the roles of the Disciplinary Committee of a Bar Council. The provisions of this Section are applicable to the State Bar Council as well as the Bar Council of India.


5.1 Powers of the disciplinary committees:


Section 42 of Advocates Act, 1961, provides that the disciplinary committee of a Bar Council shall have the same powers and roles as are vested in a civil court under the Code of Civil Procedure, 1908, with respect to summoning and enforcing the attendance of any person and examining him on oath, requiring discovery and production of any documents; receiving evidence on affidavits; requisitioning any public record or copies thereof; issuing commissions for the examination of witnesses or documents and any other matter which may be prescribed.



Any advocate who is suspended from practice by the disciplinary committee means that the advocate is debarred from practising in any court or before any authority or persons in India. The disciplinary committee of a State Bar Council may of its own motion or otherwise review any order passed by its own self, but no such order shall be effected unless it has been approved by the Bar Council of India.
 

5.2 Power to enquire and to withdraw:

If on receipt of a complaint or on its own motion, the Bar Council of India has reason to believe that any advocate on the roll whose name is not entered on any state roll, had been guilty of professional or other misconduct, it shall refer the case of such advocate for disposal to its disciplinary committees, The committee may also of its own motion, conduct an enquiry before itself, any proceedings for disciplinary action against any advocate pending before the disciplinary committee of any state Bar Council and dispose of the same.


5.3 Power to hear appeals and order stay:

Any person aggrieved by the order of the disciplinary committee of a State Bar Council under section 35 of Advocates Act, 1961 may within sixty days of the date of the communication of the order to him, may appeal before the Bar Council of India. Every such appeal is to be heard by the disciplinary committee of the Bar Council of India which may pass any such order which it deems fit.

In the case of Adi Phirozshah Gandhi v. H.M. Seervai, The disciplinary committee of the Bar Council of India in its own order allowed an appeal filed by the advocate-general under section 37 of the Advocates Act, 1961. The disciplinary committee of the Bar Council of India suspended the advocate for a year over-ruling its own decision. The same was upheld by the supreme court of India.


5.4 Power of Review:

Section 44 of Advocates Act, 1961 confers powers of review on the disciplinary committee of a Bar Council by its own motion or otherwise. However, no order or review of the disciplinary committee of the state Bar Council has any effect unless it has been approved by the Bar Council of India. In O.N. Mahindroo v. Dist. Judge, Delhi, the Supreme Court upheld the view of the Bar Council of India that the Bar Council of India itself has no power to review any order made by its disciplinary committee on appeal. But the Bar Council can rather refer the matter to the disciplinary committee matters for reconsideration. The power of revision is expressly granted to the disciplinary committee of the Bar Council of India which may on its own motion or otherwise review any order passed by itself. The word ’otherwise’ used under section 44 of Advocates Act, 1961, is very wide to include a case referred by the Bar Council for review. The court was of the view that since disciplinary proceedings against a lawyer will not only involve the particular lawyer but the prestige of the legal profession as well, that is why the powers of review of the disciplinary committees should be interpreted in a wider sense so as to enable the disciplinary committee to exercise its powers in required cases, for or against an advocate even after the matter had been head by them.


Conclusion:


It is indeed very satisfying to learn that the legal aid and advocates conduct is under the observation and power of the Bar Council of India. Discipline is important in every aspect, and in the profession where people come to seek justice has to be equally disciple and any act of misconduct should not be ignored. The person who is looked upon for providing justice has to be clean.


This post has been written by Priya Singh & Nitish Singh Solanki

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